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Gilstrap v. Eagle Eye Monitoring Co.

United States District Court, D. South Carolina

April 23, 2018

Olin Eugene Gilstrap, Donna Paige Gilstrap, Jaycie Lesley, Plaintiff,
v.
Eagle Eye Montorian Co., Sex Offender Office Pickens Co., Greg Combie, Toamas Williamston, Jerome Lathan, Defendants.

          REPORT AND RECOMMENDATION

          Kevin F. McDonald United States Magistrate Judge.

         The plaintiff Olin Eugene Gilstrap, along with two other persons, proceeding pro se, filed this civil action claiming that the defendants violated their constitutional rights.[1]The plaintiffs are not prisoners, and this action was filed in forma pauperis under 28 U.S.C. § 1915. By way of report and recommendation dated March 22, 2018, the plaintiff was advised by the undersigned that his complaint failed to state a claim for which relief could be granted, and that he could attempt to correct the identified defects by way of filing an amended complaint. The plaintiff has failed to so amend.

         BACKGROUND

         According to the complaint, the plaintiffs have filed this action against the defendants based upon federal question jurisdiction, to wit: “Constitutions of U.S.; The Government cannot require bail[, ] impose excessive fine's or use cruel or unusual punishment [and] Freedom from unreasonable searches an of human mind or home without warrent.” (Doc. 1 at 3). The Statement of Claim in the preprinted form complaint states: “[I] want human rights upheld an to my kids an grandkids upheld.” (Doc. 1 at 5). The Relief sought is: “To my body life an my wellbeing before my kids an grandkids.” (Id.).

         STANDARD OF REVIEW

         Pursuant to the provisions of 28 U.S.C. §636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(e) (D.S.C.), the undersigned is authorized to review the complaint for relief and submit findings and recommendations to the District Court. The plaintiffs filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied that the action “fails to state a claim on which relief may be granted, ” is “frivolous or malicious, ” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

         As pro se litigants, the plaintiffs' pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). However, even under this less stringent standard, the pro se pleading remains subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiffs could prevail, it should do so, but a district court may not rewrite a petition to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), or construct the plaintiffs' legal arguments for them, Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993), or “conjure up questions never squarely presented” to the court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).

         DISCUSSION

         Although the court must liberally construe the pro se complaint and the plaintiffs are not required to plead facts sufficient to prove their case as an evidentiary matter in the complaint, the complaint nonetheless “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)); see also McCleary-Evans v. Maryland Dep't of Transp., 780 F.3d 582, 585-87 (4th Cir. 2015) (noting that a plaintiff must plead enough to raise a right to relief above the speculative level); Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (explaining that a plaintiff may proceed into the litigation process only when his complaint is justified by both law and fact); cf. Skinner v. Switzer, 562 U.S. 521, 530 (2011) (holding that “a complaint need not pin plaintiff's claim for relief to a precise legal theory”). A plaintiff must do more than provide a formal recitation of the necessary elements of a claim because that would constitute merely conclusions and only speculation would fill the gaps in the complaint. McCleary-Evans, 780 F.3d at 585.

         If a plaintiff's complaint raises a federal question, then this Court may have subject matter jurisdiction over the action pursuant to 28 U.S.C. § 1331. A federal question relates to an action “arising under the Constitution, laws, or treaties of the United States.” In re Blackwater Sec. Consulting, LLC, 460 F.3d 576, 584 (4th Cir. 2006) (citation omitted); see also In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998) (holding that federal courts are courts of limited jurisdiction, “constrained to exercise only the authority conferred by Article III of the Constitution and affirmatively granted by federal statute.”); Holloway v. Pagan River Dockside Seafood, Inc., 669 F.3d 448, 453 (4th Cir. 2012) (“[S]ubject matter jurisdiction relates to a federal court's power to hear a case . . . and that power is generally conferred by the basic statutory grants of subject matter jurisdiction.”). Here, the plaintiffs do not allege a violation of the United States Constitution or any federal law. In the complaint, the plaintiffs state that they want “Freedom from unreasonable searches an of human mind or home without warrant.” (Doc. 1 at 3). In addition, they want “human rights upheld an to my kids an grandkids upheld.” (Doc. 1 at 5). As for relief, the plaintiffs seek “wellbeing.” (Id.). The complaint is vague and fails to state a claim for which relief can be granted. The complaint does not indicate there is any federal question jurisdiction over this action. In addition, there is no diversity of citizenship (see Court Docket listing the plaintiff Olin Eugene Gilstrap as a resident of the State of South Carolina; see also doc. 1 at 2-3, alleging that the individual defendants as well as the corporate defendants are located in the State of South Carolina). Accordingly, this Court lacks subject matter jurisdiction over the plaintiffs' claims.

         RECOMMENDATION

         As the complaint fails to state a claim upon which relief can be granted, and as the plaintiff has been so advised by way of the report and recommendation filed on March 22, 2018, and as the plaintiff has failed to timely file an amended complaint, it is recommended that the district court dismiss this action without prejudice.

         IT IS SO RECOMMENDED.

         Notice of Right to File Objections to Report ...


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